PWBA
Office of Regulations and Interpretations

Advisory
Opinion

This is in response to your letter requesting an advisory opinion under the
Employee Retirement Income Security Act of 1974 (ERISA). Specifically, you
request an opinion regarding the legality under ERISA of unit voting by the
Boards of Trustees of the Greyhound Lines, Inc.- Amalgamated Council Retirement
and Disability Trust; Greyhound Lines, Inc.- Amalgamated Council Health and
Welfare Trust; Greyhound Lines, Inc.- Amalgamated Council Cash or Deferred
Trust; and the West Des Moines-Greyhound Amalgamated Council Health and Welfare
Trust (collectively, the Trusts).

Your represent that all of the Trusts, and the plans of which they are a
part, are sponsored by Greyhound Lines, Inc. (Greyhound) and the Amalgamated
Council of Greyhound Local Unions (the Council) under section 302 of the Labor
Management Relations Act of 1947 (LMRA). The Boards of Trustees of each of the
Trusts consist of six Trustees appointed by the Council and six Trustees
appointed by Greyhound.

Each of the Trusts has identical voting procedure provisions to be utilized
by their respective Boards of Trustees. Currently, the Council Trustees and the
Greyhound Trustees each vote as a separate unit, with each unit in the
aggregate exercising one vote. The vote by each unit on an issue is determined
by a majority vote of the Trustees that comprise that unit. In the event that a
tie or deadlock results under unit voting, the parties have adopted a stop-gap
procedure under which the Trustees will decide the issue by a majority vote of
the members of the Board of Trustees who are present. Council Trustees and
Greyhound Trustees shall have the right to cast an equal number of votes
whether or not an equal number of Council and Greyhound Trustees are present.
If the Department issues a favorable advisory opinion on unit voting, tied or
deadlocked votes will be determined by arbitration.

Section 5 of ERISA Procedure 76-1 (41 Fed. Reg. 36281, August 27, 1976)
provides that advisory opinions ordinarily will not be issued regarding
problems of an inherently factual nature or on the form or effect in operation
of a plan or particular provisions thereof. Interpretations of plan documents
normally fall within those categories. Therefore, we wish to emphasize at the
outset that the

response of the Department of Labor in this case should not be construed in
any manner as a basis for a particular interpretation of the provisions of the
trust instrument that are described in your letter. Rather, the Department's
response is based solely upon the assumption you have posited, i.e., that plan
provisions require unit voting by the Board of Trustees of the above-referenced
Trusts.

Section 403(a) requires that all assets of an employee benefit plan shall be
held in trust by one or more trustee(s) and that such trustee(s) shall have
exclusive authority and discretion to manage and control the assets of the
plan, with certain exceptions not here relevant.

Section 404(a)(1)(A) requires a fiduciary to discharge his or her duties
with respect to a plan solely in the interest of the participants and
beneficiaries and for the exclusive purpose of providing benefits to
participants and their beneficiaries and defraying reasonable expenses of
administering the plan. In addition, section 404(a)(1)(B) requires a fiduciary
to discharge his or her duties to a plan with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in a like capacity and familiar with such matters would use in the conduct of
an enterprise of like character with like aims.

Section 404(a)(1)(D) of ERISA requires fiduciaries to discharge their duties
with respect to a plan in accordance with the documents and instruments
governing the plan, insofar as such documents and instruments are consistent
with the provisions of title I and title IV of ERISA.

There is nothing in section 403(a) or section 404(a)(1) of ERISA which
expressly prohibits or limits the exercise of any particular method of decision
making by plan trustees. Thus, in the Department's opinion, violations of
section 403(a) and 404(a)(1) would not occur merely because applicable trust
provisions require unit voting by the Board of Trustees of the Trusts.

The Department notes that the Trustees should be aware that compliance with
unit voting procedures will not operate to relieve individual trustees of
liability under sections 403(a) and 404(a)(1) of ERISA in any particular
instance. Thus, the general fiduciary responsibility provisions of ERISA remain
applicable with respect to each trustees's fiduciary conduct under the voting
arrangement. In this regard, the Department reiterates that section 404(a)
requires, among other things, that a trustee of a plan act prudently, solely in
the best interest of the plan's participants and beneficiaries and for the
exclusive purpose of providing benefits to participants and beneficiaries.

In addition, section 405(a) of ERISA imposes co-fiduciary liability upon any
fiduciary [including a trustee] for any breach of fiduciary responsibility of
another plan fiduciary: (1) if he or she knowingly participates in or conceals
such breach; (2) if by his or her failure to comply with section 404(a)(1), he
or she enables another fiduciary to commit such a breach; or (3) if he or she
has knowledge of the breach of another fiduciary and fails to make a reasonable
effort to remedy the breach. Under section 410 of ERISA provisions in a plan
document that purport to relieve a fiduciary from responsibility or liability
under the fiduciary responsibility provisions of title I of ERISA are void as
against public policy.1

Finally, it should be noted that this letter addresses only the fiduciary
responsibility provisions of title I of ERISA. We offer no comments regarding
any other law, including section 302(c) of the Labor Management Relations Act
of 1947.

This letter constitutes an advisory opinion under
ERISA Procedure 76-1.
Accordingly, this letter is subject to the provisions of that procedure,
including section 10 thereof, relating to the effect of advisory opinions.

Sincerely,

Robert J. Doyle
Director of Regulations and
Interpretations

ORI/DFI/MBC:BAW:03/25/92/F-3990A

1 In this regard, see 29 C.F.R. section
2509.75-5, FR-10, for a discussion of the steps minority trustees must take to
protect themselves from liability under sections 409 and 405(b)(1)(A) of ERISA.
In the view of the Department, the discussion contained in FR-10 regarding
trustee responsibility would be relevant regardless of whether plan documents
provide for trustee decision making by majority vote or by unit voting.